B-138210, JANUARY 21, 1959, 38 COMP. GEN. 499

B-138210: Jan 21, 1959

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UNDER THE CONTRACTOR'S METHOD OF OPERATION EACH WORKDAY IS CONSIDERED TO BE A 24 HOUR UNIT BEGINNING AT 8 A.M. ALL THREE SHIFTS ARE CONSIDERED BY THE CONTRACTOR AS FALLING ON THE SAME CALENDAR DAY ON WHICH THE 24-HOUR WORK-UNIT BEGINS. TOURS OF DUTIES FOR THOSE INSPECTORS HAVE BEEN ESTABLISHED TO PARALLEL THE THREE-SHIFT OPERATION IN EFFECT FOR CONTRACTOR EMPLOYEES. WHEN A HOLIDAY IS OBSERVED ON ANY CALENDAR WORKDAY ( MONDAY THROUGH FRIDAY) ALL CONTRACTOR EMPLOYEES RECEIVE IDENTICAL HOLIDAY BENEFITS WHETHER THEY ARE ASSIGNED TO THE FIRST. THE CONTRACTOR'S PRACTICE IS TO DISCONTINUE WORK IN OBSERVANCE OF THE HOLIDAY IN WHICH EVENT THE FACILITY IS SHUT DOWN FOR A 24-HOUR PERIOD BEGINNING AT 8 A.M.

B-138210, JANUARY 21, 1959, 38 COMP. GEN. 499

CIVILIAN EMPLOYEES - COMPENSATION - HOLIDAYS - TWENTY-FOUR-HOUR WORKDAY UNIT - SHIFTS OUTSIDE HOLIDAY PROPOSAL TO GRANT HOLIDAY BENEFITS TO CONSTRUCTION PROJECT INSPECTORS--- EMPLOYED ON A THREE-SHIFT BASIS FOR TWENTY-FOUR-HOUR PERIODS, WITH THE SHIFTS AT 8:00 A.M., 4:00 P.M., AND 12 MIDNIGHT--- BY CONSIDERING THE THREE SHIFTS IN THE TWENTY-FOUR-HOUR WORKDAY UNIT AS FALLING ON THE SAME CALENDAR DAY SO THAT THE EFFECT WOULD BE TO ALLOW TIME OFF WITH PAY TO THIRD-SHIFT EMPLOYEES FOR WORK WHOLLY OUTSIDE A FEDERAL HOLIDAY AND TO DENY HOLIDAY PAY FOR WORK BY THIRD-SHIFT EMPLOYEES ON A SHIFT WHOLLY WITHIN A HOLIDAY MAY NOT BE APPROVED; HOWEVER, THERE WOULD BE NO OBJECTION TO A PROPOSAL TO CHANGE THE THREE TOURS OF DUTY BY A SHORT PERIOD (FOR EXAMPLE: THE THIRD SHIFT COULD BE FIXED AT 11:59 P.M. TO 7:59 A.M.) THAT HOLIDAY TIME OFF AND HOLIDAY PAY WOULD BE WITHIN THE SCOPE OF SECTIONS 6 AND 7, EXECUTIVE ORDER NO. 10358.

TO THE SECRETARY OF THE ARMY, JANUARY 21, 1959:

WE REFER TO THE UNDER SECRETARY OF THE ARMY'S LETTER OF DECEMBER 16, 1958, CONCERNING HOLIDAY BENEFITS FOR PERSONS EMPLOYED BY THE DEPARTMENT OF THE ARMY TO SERVE AS INSPECTORS AT A CONSTRUCTION PROJECT, UNDER THE FACTS AND CIRCUMSTANCES DISCUSSED BELOW.

THE CONSTRUCTION CONTRACTOR OPERATES ON AN AROUND-THE-CLOCK BASIS, BEGINNING AT 8 A.M. MONDAY AND ENDING AT 8 A.M. SATURDAY. UNDER THE CONTRACTOR'S METHOD OF OPERATION EACH WORKDAY IS CONSIDERED TO BE A 24 HOUR UNIT BEGINNING AT 8 A.M. OF ANY ONE DAY, MONDAY THROUGH FRIDAY. CONTRACTOR EMPLOYEES WORK ON A 3-SHIFT BASIS, THE FIRST SHIFT STARTING AT 8 A.M., THE SECOND SHIFT AT 4 P.M., AND THE THIRD SHIFT AT 12 MIDNIGHT. ALL THREE SHIFTS ARE CONSIDERED BY THE CONTRACTOR AS FALLING ON THE SAME CALENDAR DAY ON WHICH THE 24-HOUR WORK-UNIT BEGINS.

THE NATURE OF THE CONTRACTOR'S OPERATION REQUIRES CONTINUOUS INSPECTION BY CIVILIAN INSPECTORS OF THE DEPARTMENT OF THE ARMY. TOURS OF DUTIES FOR THOSE INSPECTORS HAVE BEEN ESTABLISHED TO PARALLEL THE THREE-SHIFT OPERATION IN EFFECT FOR CONTRACTOR EMPLOYEES.

WHEN A HOLIDAY IS OBSERVED ON ANY CALENDAR WORKDAY ( MONDAY THROUGH FRIDAY) ALL CONTRACTOR EMPLOYEES RECEIVE IDENTICAL HOLIDAY BENEFITS WHETHER THEY ARE ASSIGNED TO THE FIRST, SECOND, OR THIRD SHIFT. NORMALLY, THE CONTRACTOR'S PRACTICE IS TO DISCONTINUE WORK IN OBSERVANCE OF THE HOLIDAY IN WHICH EVENT THE FACILITY IS SHUT DOWN FOR A 24-HOUR PERIOD BEGINNING AT 8 A.M. OF THE CALENDAR DAY ON WHICH THE HOLIDAY IS OBSERVED UNTIL 8 A.M. OF THE FOLLOWING CALENDAR DAY. ALL FIRST-, SECOND-, AND THIRD-SHIFT CONTRACTOR EMPLOYEES ARE EXCUSED FROM DUTY WITH PAY DURING THE 24-HOUR SHUTDOWN PERIOD. IF THE FACILITY SHOULD REMAIN OPEN ON THE HOLIDAY, ALL FIRST-, SECOND-, AND THIRD-SHIFT CONTRACTOR EMPLOYEES WOULD RECEIVE HOLIDAY PAY, EVEN THOUGH THE THIRD SHIFT BEGINS ON THE CALENDAR DAY FOLLOWING THE HOLIDAY.

THE UNDER SECRETARY POINTS OUT THAT THE CLOSING OF THE CONTRACTOR FACILITY FOR A 24-HOUR PERIOD BEGINNING AT 8 A.M. OF THE CALENDAR DAY ON WHICH THE HOLIDAY IS OBSERVED AND ENDING AT 8 A.M. OF THE FOLLOWING DAY HAS THE FOLLOWING EFFECT ON HOLIDAY BENEFITS FOR THIRD-SHIFT DEPARTMENT OF THE ARMY INSPECTORS:

A. IF THE HOLIDAY IS OBSERVED ON A MONDAY, THE FACILITY REMAINS CLOSED FOR A 24-HOUR PERIOD BEGINNING AT 8:00 A.M. MONDAY AND ENDING AT 8:00 A.M. ON TUESDAY. DUE TO THE SHUT-DOWN, THIRD-SHIFT INSPECTORS ARE UNABLE TO WORK, BUT SINCE THEIR SHIFT DOES NOT BEGIN ON THE CALENDAR DAY ON WHICH THE HOLIDAY FALLS, THEY MAY NOT BE EXCUSED FROM DUTY WITHOUT LOSS OF PAY OR CHARGE TO LEAVE. FOR THIS REASON, THEY RECEIVE NO HOLIDAY BENEFITS AND THEIR ABSENCE IS CHARGED TO ANNUAL LEAVE. AN EXCEPTION TO THIS PRACTICE OCCURS IN THE CASE OF LABOR DAY WHEN INSPECTORS WORKING THE THIRD SHIFT ARE ELIGIBLE TO BE EXCUSED UNDER THE PROVISIONS OF SECTION 5, EXECUTIVE ORDER 10358, DATED 9 JUNE 1952.

B. IF THE CONTRACTOR FACILITY IS CLOSED DOWN IN OBSERVANCE OF A HOLIDAY FOR A 24-HOUR PERIOD BEGINNING AT 8:00 A.M. ON TUESDAY, WEDNESDAY, THURSDAY, OR FRIDAY, THE THIRD-SHIFT INSPECTORS RECEIVE HOLIDAY PAY FOR WORKING THEIR 8-HOUR SHIFT IMMEDIATELY PRIOR TO THE SHUT-DOWN, BUT ARE CHARGED ANNUAL LEAVE FOR THEIR ABSENCE DURING THE SHUT-DOWN ON THEIR FOLLOWING SHIFT.

THE UNDER SECRETARY SAYS THAT THE DIFFICULTIES ENCOUNTERED IN EXTENDING HOLIDAY BENEFITS TO THE THIRD-SHIFT INSPECTORS COULD BE ELIMINATED BY AN ADMINISTRATIVE DETERMINATION THAT THE THREE SHIFTS COMPRISING THE 24 HOUR WORKDAY UNIT ESTABLISHED BY THE CONTRACTOR ALL BE CONSIDERED AS FALLING ON THE SAME CALENDAR DAY AS THAT ON WHICH THE FIRST OF SAID SHIFTS BEGINS. HE EXPRESSES THE VIEW THAT SUCH A DETERMINATION WOULD BE IN KEEPING WITH THE FUNDAMENTAL PURPOSE OF EXECUTIVE ORDER NO. 10358, DATED JUNE 9, 1952, WHICH IS, AS STATED IN 34 COMP. GEN. 503,"TO GRANT, AS NEARLY AS POSSIBLE, EQUIVALENT HOLIDAY BENEFITS TO ALL FEDERAL EMPLOYEES ENTITLED THERETO BY STATUTE, REGARDLESS OF VARIATIONS IN WORKDAYS AND TOURS OF DUTY OCCASIONED BY OPERATING REQUIREMENTS.'

AS WE UNDERSTAND THE PROPOSAL, THE THIRD-SHIFT INSPECTORS WOULD, AS A RESULT OF SUCH ADMINISTRATIVE DETERMINATION, RECEIVE BENEFITS EQUAL TO THOSE ALREADY ALLOWED TO THE FIRST- AND SECOND-SHIFT EMPLOYEES. THE RESULT, HOWEVER, WOULD BE TO ALLOW TIME OFF WITH PAY TO THIRD-SHIFT EMPLOYEES FOR WORK PERFORMED ON A SHIFT WHOLLY OUTSIDE THE FEDERAL HOLIDAY AND THE DENIAL OF HOLIDAY PAY FOR WORK PERFORMED BY THIRD-SHIFT EMPLOYEES ON A SHIFT WHOLLY WITHIN THE FEDERAL HOLIDAY. OUR OFFICE KNOWS OF NO PROPER BASIS FOR AUTHORIZING SUCH ACTION. ON THE OTHER HAND, THE DEPARTMENT OF THE ARMY COULD ADVANCE EACH OF THE THREE TOURS OF DUTY OF THE INSPECTORS BY A SHORT PERIOD, SAY ONE MINUTE (FOR EXAMPLE, THE THIRD SHIFT COULD BE FIXED AT 11:59 P.M. TO 7:59 A.M.), SO THAT HOLIDAY TIME OFF AND HOLIDAY PREMIUM PAY COULD BE WITHIN THE SCOPE OF SECTIONS 6 AND 7, EXECUTIVE ORDER NO. 10358, RELATING TO EXCUSING FROM WORK AND HOLIDAY PAY WHEN A WORKDAY COVERS A PORTION OF TWO CALENDAR DAYS. THE NET RESULT OF SUCH A CHANGE IN THE TOURS OF DUTY WOULD BE IDENTICAL WITH THAT SOUGHT TO BE ACHIEVED BY THE ADMINISTRATIVE PROPOSAL IN THAT EMPLOYEES OF ALL THREE SHIFTS WOULD RECEIVE IDENTICAL BENEFITS. IN THE CIRCUMSTANCES, WHILE WE MUST DENY THE REQUEST FOR APPROVAL OF THE ADMINISTRATIVE PROPOSAL BECAUSE SUCH PROPOSAL WOULD ON THE ONE HAND ALLOW TIME OFF WITH PAY TO THIRD-SHIFT EMPLOYEES FOR WORK WHOLLY OUTSIDE THE FEDERAL HOLIDAY AND ON THE OTHER HAND WOULD DENY HOLIDAY PAY FOR WORK PERFORMED BY THE THIRD-SHIFT EMPLOYEES ON A SHIFT WHOLLY WITHIN THE FEDERAL HOLIDAY, OUR OFFICE WOULD HAVE NO OBJECTION TO ADMINISTRATIVE ACTION CHANGING THE TOURS OF DUTY OF THE INSPECTORS AS SUGGESTED ABOVE.